Maloney v. United States Rubber Co.

Holmes, J. There can be no pretence that the plaintiff had not taken the risk of the general mode of using the baling machine. His ground of recovery, if any, must be that which was most relied on by his counsel, namely, that an unsuitable joist was furnished to him, which was unsafe when subjected to the high pressure which it had to undergo. But the plaintiff took his choice from a pile lying before him. If there were any defects in the one which he selected, he could see them as well as anybody, and might have taken another. The only defects visible to any one were that the joist was old and bent. Allen v. Smith Iron Co, 160 Mass. 557. It is unnecessary to consider whether the evidence with regard to the manner in which the parol receipt was signed would not have warranted going behind the conclusion which it seemed to [351] establish, that the thirty-seven and a half dollars mentioned in it was received in satisfaction of the plaintiff’s supposed claim. See Curley v. Harris, 11 Allen, 112, 121, 122; O'Donnell v. Clinton, 145 Mass. 461, 463. Exceptions overruled.